W.C. No. 4-008-289.Industrial Claim Appeals Office.
November 18, 2011.
ORDER
The respondents seek review of a supplemental order of the Director of the Division of Workers’ Compensation (Director) dated July 25, 2011, that grants the claimant’s application for a lump sum payment. The claimant seeks review of the Director’s order dated August 24, 2011, denying the respondents’ request to stay the order granting a lump sum payment. We dismiss the petitions to review.
According to the file in this matter, the parties stipulated that the claimant was permanently and totally disabled due to an industrial injury in 1990. In 2010, the claimant requested an additional lump sum payment pursuant to § 8-43-406, C.R.S. and the respondents petitioned to reopen the issue of permanent total disability based on a change in condition. The Director denied the lump sum request on the ground that the claimant’s permanent total disability award was under review and not final. The claimant did not appeal the Director’s denial of her request for a lump sum. The respondents subsequently withdrew their application for hearing on the issue of reopening, apparently intending to re-file it after a determination regarding medical testing.
On March 3, 2011, the claimant filed another application for a lump sum payment. On March 17, 2011, the Director, again, denied the request on the ground that the claimant’s permanent total disability benefits were under review. The claimant appealed and the Director issued the supplemental order that is the subject of the respondents’ appeal.
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The Director found no procedural impediment to the claimant’s request for another lump sum payment and determined that the issue of the claimant’s award of permanent total disability benefits was not presently reopened. The Director concluded that under the circumstances, the claimant was entitled to a lump sum payment. The Director therefore ordered the respondent insurer to submit the required lump sum calculation information within ten business days.
The respondents appealed the supplemental order and, also, requested that the lump sum payment be stayed. In an order dated August 24, 2011, the Director denied the request to stay. The claimant appealed the denial of the stay, apparently under the mistaken belief that the Director stayed payment of the lump sum.
I.
We dismiss without prejudice the claimant’s petition to review the Director’s denial of a stay for lack of a final and appealable order. Section 8-43-301(2), C.R.S.; see also Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo. App. 1986) (order not requiring or denying payment of benefits or penalties is interlocutory). The respondents request attorney fees against the claimant. Section 8-43-301(14), C.R.S. indicates that attorney fees and costs may be awarded when an attorney submits a petition to review or brief in support of a petition that is not well grounded in fact and warranted by existing law or fails to make a good faith argument for the extension, modification, or reversal of existing law. Cf. Lofren v. Kodak Polychrome Graphics, W.C. No. 4-445-606 (Nov. 7, 2002), aff’d in part and dismissed in part, No. 02CA2372 (Colo. App. Sept. 18, 2003) (not selected for official publication) (remanding for evidentiary hearing ALJ’s award of attorney fees for petitioning to review interlocutory order). The claimant is not represented by counsel and we deny the respondents’ request for attorney fees.
II.
The respondents argue on the one hand that it was improper for the claimant to be able to obtain a lump sum order given the procedural history of this case. The respondents also argue that if successful in their petition to reopen the issue of permanent total disability benefits, it is unlikely they will be able to recover any overpayment. In connection with their petition to reopen, the respondents infer that the lump sum award should have not been granted pending the outcome of their petition to reopen. We conclude that we have no basis for reviewing the Director’s lump sum order.
The respondents acknowledge the procedural nature of lump sum payments. A lump sum payment merely provides an advance against previously established benefits:
An employee’s choice to receive a lump sum payment does not create, eliminate, or modify vested rights or
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liabilities. . . . Instead, election of a lump sum payment simply alters the method of distribution of the existing award by requiring the employer and insurer to advance payment of part or all of the compensation due.
Specialty Restaurants Corp. v. Nelson, 231 P.3d 393, 400 (Colo. 2010). The upshot of the claimant’s request for a lump sum payment is that the Director granted the request as provided by statute. For their part, the respondents essentially seek to stay the effect of the lump sum order until their petition to reopen the issue of the claimant’s permanent total disability is resolved. Under the particular circumstances of this case, we conclude that there is no final order presented for review.
Pursuant to § 8-43-301(2), C.R.S., we are granted jurisdiction only to review an order which requires any party to pay a penalty or benefits or which denies a claimant any benefits or penalty. Consequently, an order must satisfy the finality criteria set forth in § 8-43-301(2), C.R.S. or we lack jurisdiction. It is well settled that an order which does not require the payment of benefits or penalties nor denies the claimant benefits or penalties is interlocutory. Director of Div. of Labor v. Smith supra. Under the particular circumstances of this case, the lump sum award does not substantively affect the claimant’s entitlement to benefits and the respondents’ assertions do not provide a basis for our review. Specialty Restaurants Corp. v. Nelson, supra. Accordingly, we lack jurisdiction to review orders or portions of orders which are not final and reviewable within the meaning of § 8-43-301(2), C.R.S. Cf. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo. App. 2003).
We do not reach the respondents’ remaining arguments. We dismiss the respondents’ petition to review for lack of a final order. Thus, at this juncture, the Director’s lump sum payment award remains in effect. See § 8-47-103, C.R.S. (Director’s order “valid and in force and prima facie reasonable and lawful until found otherwise” or until altered or revoked).
Several documents filed during the pendency of this appeal concern matters beyond the scope of the appeals, which we decline to consider. See § 8-1-102(1), C.R.S. (panel conducts administrative appellate review).
IT IS THEREFORE ORDERED that the petitions to review the Director’s orders dated July 25, 2011and August 24, 2011 are dismissed without prejudice.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________2 John D. Baird
______________________________ Kris Sanko
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CAROLE POTEREIKO, Attn: % EDWARD POTEREIKO, 3169 BLUE MOUNTAIN WAY, COLORADO SPRINGS, CO, (Claimant), CENTRAL REGIONAL CLAIMS CORPORATION, Attn: GARY HALE, C/O: WESTER GUARANTY INSURANCE, DENVER, CO, (Insurer).
WEINBERGER LAW OFFICES, P.C., Attn: ROBERT A. WEINBERGER, ESQ., DENVER, CO, (For Respondents).
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